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"The perceived Constitutionality of the NSA programs is irrelevant." This is incorrect. If the NSA programs are found to be unconstitutional by the courts, Sno

"The perceived Constitutionality of the NSA programs is irrelevant." This is incorrect. If the NSA programs are found to be unconstitutional by the courts, Snowden will have to be regarded as a whistleblower. If he is a whistleblower, then he is not a criminal. The very problem here is that a good number of us Americans, and a great many more non-Americans, regard secret surveillance as both an affront to the 4th amendment of the US Constitution, and the basic human right to freedom. Secrecy is simply anathema to democracy.

rsync 13y ago
If he gets a jury trial then all of it is irrelevant. He can be acquitted for any reason whatsoever: http://en.wikipedia.org/wiki/Jury_nullification http://en.wikipedia.org/wiki/Jury_nullification
- dmix 13y ago
  Espionage is tried with juries? Source?
  - tptacek 13y ago
    What source would you need for that? The 6th Amendment guarantees trial by jury.
    - dmix 13y ago
      Fair enough. I had assumed military trials may be treated differently as Manning's trial didn't have a jury. But it turns out he declined a jury with this reasoning: > "The answer may be that a tough judge is still a better option than a military jury picked from a pool of serving soldiers that widely considers Manning to be a traitor. " http://www.telegraph.co.uk/news/worldnews/wikileaks/9901659/WikiLeaks-why-has-Bradley-Manning-turned-down-a-jury-trial.html http://www.telegraph.co.uk/news/worldnews/wikileaks/9901659/...
      - tptacek 13y ago
        Yes, Manning is being tried under the UCMJ, but would have had a jury available to him there as well. However: Snowden is a civilian. He can't be tried in a military court (absent his joining the armed forces of some organization we're war with).
- ics 13y ago
  Right, but there are still some sticky issues surrounding nullification. "This so-called right of jury nullification is put forward in the name of liberty and democracy, but its explicit avowal risks the ultimate logic of anarchy." See: http://law2.umkc.edu/faculty/projects/ftrials/juryseminar/USvDougherty1972.html http://law2.umkc.edu/faculty/projects/ftrials/juryseminar/US... http://caselaw.findlaw.com/us-2nd-circuit/1382192.html http://caselaw.findlaw.com/us-2nd-circuit/1382192.html Essentially, while jury nullification does exist and should be upheld it is critical that jurors are aware of it beforehand or may be otherwise informed.
  - cpleppert 13y ago
    This just doesn't come up in most high profile cases. The government will strike any juror who is a threat to use nullification.
tptacek 13y ago
I don't think it's actually true that whistleblower protections in the US effectively sanction any disclosure or leak if what is leaked somehow implicates some crime. I'd welcome a source to back your assertion up, though.
- olefoo 13y ago
  It's an interesting question the criminality of his actions may from a legal standpoint be completely independent of his status as a whistleblower or spy ( and those two categories may not be mutually exclusive either ). Certainly he has violated his confidentiality agreements ( a civil liability ) and exposed information that is classified ( potentially a criminal liability ). And it's possible for rational people to think that he may be doing things that are morally justifiable even if criminal. Where most people who think that investigating systematic acts of lawbreaking ( and wholesale collection of private metadata absent criminal suspicion from private companies by __any__ .gov qualifies as such on first examination ), may believe that those who bring such acts to light should be spared punishment because they are acting in defense of the greater good of society. It is healthy for us to be reminded that our naive moral calculus is only loosely mapped to our system of laws.
  - tptacek 13y ago
    Sure. I'm interested pretty exclusively in the legalisms of this situation, not in the moral dimension (which I don't believe I can learn anything about from a message board).
- foobarqux 13y ago
  The Federal Whistleblower Act does not cover Snowden. 5 U.S.C. § 2302(b)(8)(A)-(B). For disclosures not made to the Inspector General or Special Counsel "if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs;" Also www.aclu.org/pdfs/safefree/disavowed_report.pdf‎ (Page 10)
- andrewljohnson 13y ago

rsync 13y ago

If he gets a jury trial then all of it is irrelevant. He can be acquitted for any reason whatsoever: http://en.wikipedia.org/wiki/Jury_nullification http://en.wikipedia.org/wiki/Jury_nullification

dmix 13y ago
Espionage is tried with juries? Source?
- tptacek 13y ago
  What source would you need for that? The 6th Amendment guarantees trial by jury.
  - dmix 13y ago
    Fair enough. I had assumed military trials may be treated differently as Manning's trial didn't have a jury. But it turns out he declined a jury with this reasoning: > "The answer may be that a tough judge is still a better option than a military jury picked from a pool of serving soldiers that widely considers Manning to be a traitor. " http://www.telegraph.co.uk/news/worldnews/wikileaks/9901659/WikiLeaks-why-has-Bradley-Manning-turned-down-a-jury-trial.html http://www.telegraph.co.uk/news/worldnews/wikileaks/9901659/...
    - tptacek 13y ago
      Yes, Manning is being tried under the UCMJ, but would have had a jury available to him there as well. However: Snowden is a civilian. He can't be tried in a military court (absent his joining the armed forces of some organization we're war with).
ics 13y ago
Right, but there are still some sticky issues surrounding nullification. "This so-called right of jury nullification is put forward in the name of liberty and democracy, but its explicit avowal risks the ultimate logic of anarchy." See: http://law2.umkc.edu/faculty/projects/ftrials/juryseminar/USvDougherty1972.html http://law2.umkc.edu/faculty/projects/ftrials/juryseminar/US... http://caselaw.findlaw.com/us-2nd-circuit/1382192.html http://caselaw.findlaw.com/us-2nd-circuit/1382192.html Essentially, while jury nullification does exist and should be upheld it is critical that jurors are aware of it beforehand or may be otherwise informed.
- cpleppert 13y ago
  This just doesn't come up in most high profile cases. The government will strike any juror who is a threat to use nullification.

tptacek 13y ago

I don't think it's actually true that whistleblower protections in the US effectively sanction any disclosure or leak if what is leaked somehow implicates some crime. I'd welcome a source to back your assertion up, though.

olefoo 13y ago
It's an interesting question the criminality of his actions may from a legal standpoint be completely independent of his status as a whistleblower or spy ( and those two categories may not be mutually exclusive either ). Certainly he has violated his confidentiality agreements ( a civil liability ) and exposed information that is classified ( potentially a criminal liability ). And it's possible for rational people to think that he may be doing things that are morally justifiable even if criminal. Where most people who think that investigating systematic acts of lawbreaking ( and wholesale collection of private metadata absent criminal suspicion from private companies by __any__ .gov qualifies as such on first examination ), may believe that those who bring such acts to light should be spared punishment because they are acting in defense of the greater good of society. It is healthy for us to be reminded that our naive moral calculus is only loosely mapped to our system of laws.
- tptacek 13y ago
  Sure. I'm interested pretty exclusively in the legalisms of this situation, not in the moral dimension (which I don't believe I can learn anything about from a message board).
foobarqux 13y ago
The Federal Whistleblower Act does not cover Snowden. 5 U.S.C. § 2302(b)(8)(A)-(B). For disclosures not made to the Inspector General or Special Counsel "if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs;" Also www.aclu.org/pdfs/safefree/disavowed_report.pdf‎ (Page 10)
andrewljohnson 13y ago